Allahabad High Court
Jyoti Shukla vs State Of U.P. And 4 Others on 24 March, 2017
Bench: V.K. Shukla, Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on: 08.03.2017 Delivered on: 24.03.2017 Court No. - 21 Case :- WRIT - C No. - 1968 of 2017 Petitioner :- Jyoti Shukla Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rahul Agarwal Counsel for Respondent :- C.S.C.,Ajay Yadav,Inteshwar Nath Singh Hon'ble V.K. Shukla,J.
Hon'ble Mrs. Sangeeta Chandra,J.
(Oral : V.K. Shukla, J.) Petitioner Jyoti Shukla is before this Court praying for the following reliefs:-
"(a) issue a writ, order or direction in the nature of Certiorari quashing the allotment of seat reserved for NCC General Sub-Category in LLRM Medical College, Meerut to the petitioner.
(b) issue a writ, order or direction in the nature of Mandamus directing the respondents to transfer the petitioner to GSVM Medical College, Kanpur on the one seat reserved for NCC general sub-category on which Ms. Ojasvi Yadav has wrongly been admitted.
(c) issue any other suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of case."
Brief background of the case is that the petitioner had appeared in the National Eligibility-cum Entrance Test (NEET-2016) with Roll No. 8750541. The petitioner is a general category student, and holds the NCC (National Cadet Corps) category 'C' certificate also. The petitioner had secured 96.976709 percentile in NEET-2016. The overall rank of the petitioner was 3877 in the State of U.P. while in the sub-category of NCC, the petitioner was ranked 5th all over the State. The counselling of the petitioner was carried out at MLN Medical College, Allahabad on 21.09.2016 pursuant to the declaration of result on 04.09.2016. In the counselling, the petitioner was allotted the seat reserved for NCC candidates in the NCC general sub-category at LLRM Medical College, Meerut. The petitioner having been directed to report on or before 25.09.2016 at LLRM Medical College, Meerut for admission, claims that the petitioner went and joined LLRM Medical College, Meerut as MBBS student in the NCC general sub-category of the unreserved seats and is currently pursuing her course.
Petitioner has come up with the case that during the counselling on 21.09.2016, certain irregularities were committed, inasmuch as one other candidate who belonged to the NCC OBC, sub-category had been allotted the NCC general sub-category seat in GSVM Medical College, Kanpur. The father of the petitioner immediately represented to the Director General Medical Education and Training, Lucknow, U.P. on 21.09.2016 itself inviting attention of the irregularities committed by sending e-mail. Petitioner claims that when no action was taken, the petitioner moved an application under Right to Information Act on 10.10.2016 requesting the Director General Medical Education and Training, Lucknow, U.P. to intimate the total number of seats reserved in the NCC general and NCC reserved category across the State of U.P. as also the seats reserved specifically in GSVM Medical College, Kanpur. Petitioner has further contended that the petitioner, being interested only for admission in GSVM Medical College, Kanpur, wrote a letter on 10.10.2016 to the Public Information Officer, GSVM Medical College, Kanpur requesting information as to details of the students who had been admitted under the NCC general sub-category in the unreserved Scheduled Caste/Scheduled Tribe category. On 21.10.2016, the petitioner was informed of the names of the student who had been admitted to pursue MBBS course in the GSVM Medical College, Kanpur under the NCC sub-category. On 24.11.2016, the Public Information Officer informed the petitioner that the list of selected candidates was available on the website www.updgme.in and the petitioner should access the information herself from the website. Petitioner claims that when the petitioner checked the website as advised by the Public Information Officer, the petitioner could not find any list as was claimed to have been available on the website. Further, the petitioner has proceeded to point out that she had already requested for information in respect of total number of seats reserved for admission Medical College wise, but the letter dated 24.11.2016 only mentioned about the allotted seats. The petitioner pointed out that she wanted to know the names and details of the persons to whom such seats have been allotted. Thereafter, on 09.12.2016 alone, the Public Information Officer made available the requisite information to the petitioner. As per the information made available to the petitioner, one seat was reserved under the NCC general sub-category in KGMU, Lucknow and one other seat was reserved under the same category in GSVM Medical College, Kanpur. One seat under the same category was also reserved in SN Medical College, Agra. Petitioner claims that when she found that one seat under the NCC sub-category had been reserved in KGMU, Lucknow and also GSVM Medical College, Kanpur, the petitioner was taken by surprise, inasmuch as being the highest rank student across the State of U.P. under the General sub-category, the petitioner was eligible and entitled to be allotted the seat of her choice in which ever college of the State of U.P., she wanted to join to pursue her MBBS studies. Petitioner has further contended that from a perusal of the seat chart supplied to the petitioner for GSVM Medical College, Kanpur, the petitioner came to know that 2 students belonging to the OBC category had been admitted under the NCC sub-category, whereas one student had been admitted under the scheduled caste NCC sub-category. Petitioner claims that she filed objections and has also obtained entire list of allotment of NCC sub category seats across all the Medical Colleges and across all the categories and with all the material available, petitioner as of now is before this Court with the contention that it is not at all open to the State of U.P. to fill up NCC General Sub-Category seat with a NCC OBC Sub-Category Candidate/student only on account of higher rank of NCC sub-category candidate/student and in view of this, a request has been made that intervention be made and requisite relief as prayed for be granted by this Court.
Response has been filed on behalf of opposite party no.5 and therein it has been pointed out that present writ petition is not maintainable on the ground that as per time schedule, the date for completion of admission process for first MBBS course (Academic Session 2016-17) was 30th September and the same is already over and respondent nos.1 to 4 have no authority to transfer the petitioner from LLRM Medical College, Meerut to GSVM Medical College, Kanpur nor have the power to reconsider the matter. Mention has also been made that admission in question has strictly been made on merits and once merit status of petitioner is lower as compared to the merit status of opposite party no.5, no relief can be accorded.
On 20.02.2017, following order was passed by us:-
"On the basis of instructions received, after hearing the parties, we reserved the judgement to be delivered on 20.02.2017.
During the course of preparation of judgment, looking into the nature of arguments advanced and the repercussions, it will have vis-a-vis the inter-se merit of special reservation candidate and to have a guideline for future admissions, we, in our turn, ask the Director General, Medical Education and Training to file his personal affidavit before this Court within six days from today giving therein details:-
(i) Horizontal reservation is "Compartmentalised as per the chart appended at page 36, 37 of the paper book or it is an "overall" reservation.
(ii) Once horizontal reservation seats have been distributed based on social reservation, can special reservation quota candidate be taken/accommodated/adjusted in open category seat being higher in merit in special reservation category.
(iii) Full details of NCC sub-category candidates, who had participated in counselling and the respective Medical College wherein they have been accorded admission. Full details be furnished of the cut of mark of each category of admission accorded.
(iv) Total seats identified at different Medical Colleges for NCC sub-category has been 6 open category, 3 OBC Category and 4 SC category whereas admission has been accorded to 6 OBC Category, 3 General category and 4 SC candidate.
Once all these OBC category candidates were not in a position to secure admission on their own merit in open category as well as in their respective social category, can while considering their claim under horizontal reservation, they can be adjusted/accommodated against open category seat and thus crossing the reservation limit of 50%.
Put up this matter for further hearing on 27.02.2017 in computer list."
Pursuant to the aforementioned directives so issued by us, Counter Affidavit on behalf of opposite party no.2 has been filed by Director General, Medical Education and Training, Uttar Pradesh, Lucknow and in the Counter Affidavit in question, it has been mentioned that on the basis of overall State rank of respondent no.5 i.e. 2859 and overall State rank of petitioner i.e. 3877 both the candidates were not in a position to be allotted seats in the counselling in their respective categories and in NCC category/sub-category. The candidates at serial no.1, 3, 4, 5, 6 and 10 in the chart could not have got the seats and for this reason, the respondent no.5, whose name finds place at serial no.9 now stood at serial no.4 whereas the petitioner, whose name finds place at serial no.11, now stood at serial no.5 in the NCC category/sub-category and because respondent no.5, who was higher in State rank than the petitioner, appeared in counselling under NCC category earlier than the petitioner (not as OBC in NCC sub-category) and having a choice, being higher in State rank as well as NCC rank, she opted for the seat available under the NCC category at GSVM Medical College, Kanpur. Though this was General category seat, but the same was allotted to her in view of her overall State rank and further mention has been made that two OBC candidates got admission on merit in NCC category against unreserved seats and as such they are not liable to be treated under the OBC category. In the instant case, respondent no.5 has been selected and admitted at Kanpur on the basis of merit/State rank in NCC category and as such, the principle of avoiding crossing reservation limit of 50% would not apply.
Affidavit to the similar effect has been filed by Shri Shiv Raj Singh Yadav, father of opposite party no.5 and his emphasis is also on the fact that a candidate higher in rank, even though belonging to a reserved category, can opt for the seat under the open category if the same is available to such candidate at the time of counselling.
Apart from the said Counter Affidavit, a Supplementary Counter Affidavit has also been filed giving therein the list of candidates belonging to OBC category, who have been allotted different Medical Colleges and a true copy of the allotment list has also been annexed with the affidavit. A Rejoinder Affidavit has also been filed and therein averments mentioned in the Writ Petition have been reiterated. After exchange of pleadings, the matter has been taken up for final hearing and disposal.
Shri Rahul Agrawal, counsel for the petitioner submitted before this Court that NCC sub-category reservation for admission to MBBS course in the State Medical College is horizontal reservation and as here vacancies in question have been compartmentalised, a candidate who has proceeded to make an application for the purposes of horizontal reservation under NCC OBC sub-category cannot be permitted to change his category and in the present case, opposite party no.5, who is from NCC OBC sub-category has been accorded admission against the seat meant for NCC General sub-category and as such, there is an apparent illegality committed in allotting NCC General sub-category seat to NCC OBC sub-category candidate on the face of record and accordingly injustice done to the petitioner by not providing her the Institution of her choice be redressed by according requisite relief and the time table that has been fixed for giving admission to MBBS course should not at all come in the way of petitioner in getting the requisite relief as the petitioner is already studying and is merely seeking a transfer.
Dr. Y.K. Srivastava, Advocate appearing for the State, on the other hand, has contended that merit status of petitioner is much lower as compared to the opposite party no.5 and in view of this, opposite party no.5 -Ms. Ojasvi Yadav has been called for counselling and rightfully all the seats that were available has been offered to her and in view of this, to say that reservation quota has been breached, cannot be accepted in the facts of the case. Plea has also been raised that as of now once admission stands accorded and admission process has come to an end and both the students are pursuing their respective studies, then no interference be made at this stage of proceeding.
Shri I.N. Singh Yadav, Advocate, who has entered appearance on behalf of opposite party no.5 has contended that once the merit of opposite party no.5 has been superior, she has every right to opt for a seat available in counselling and to say that reservation criteria has been breached cannot be accepted and as such no interference be made in the facts of the case and specially when petitioner is pursuing her course at Meerut and opposite party no.5 has been pursuing her course at Kanpur.
After respective arguments have been advanced, the factual situation that is so emerging in the present case vis-a-vis petitioner and opposite party no.5 is that petitioner was one of the candidate, who had appeared in NEET 2016 with Roll No.8750541 and the petitioner was a general category candidate/student and holds NCC category 'C' certificate. The overall rank of petitioner was 3877 in the State of U.P. while in the sub-category of NCC, petitioner has been ranked 5th all over the State. Respondent no.5 on the other hand has got State Rank 2895 in NEET 2016. Respondent no.5 is from OBC category and has also applied under OBC NCC sub-category and her sub-category rank is 4th as against the petitioner who ranks 5th. In the NCC category/sub-category the candidates at serial no.1, 3, 4, 5, 6 and 10 could not get the seats and for this reason the respondent no.5, who's name figured at serial no.9, stood at serial no.4, whereas the petitioner, who's name finds place at serial no.11, stood at serial no.5 in the NCC sub-category.
After the result of NEET 2016 has been declared, King George's Medical University, Lucknow was entrusted with the job of counselling. In the brochure in question that has been so published for NEET 2016 counselling, a full fledged mechanism for reservation has been provided for dealing with vertical reservation as well as horizontal reservation. The same reads as follows:-
vkj{k.k (Reservation) ¼v½ uhV&2016 ds ek/;e ls Hkjh tkus okyh izR;sd esfMdy dkyst esa miyC/k izR;sd ikB~;dze dh dqy lhVksa ij fuEuor^ m)Zok/kj vkj{k.k^ (Vertical Reservation) iznku fd;k tk;sxk% 1- vuqlwfpr&tkfr (S.C.) ds vH;FkhZ 21 izfr'kr 2- vuwlwfpr&tutkfr (S.T.) ds vH;FkhZ 02 izfr'kr 3- vU;&fiNM+k&oxZ (O.B..C.) ds vH;FkhZ 27 izfr'kr vU;&fiNM+k&oxZ (O.B..C.) dk rkRi;Z fo/kk;h vuqHkkx dh vf/klwpuk la0 1576@17&fo01&1¼d½11&2002 fnukad 31 vxLr] 2002 }kjk vf/klwfpr m0iz0 vf/kfu;e la[;k&1@2002 dh^^ vuqlwph&,d^^ esa bafxr oxksZa ls gSA fiNM+s oxZ ds og vH;FkhZ tks mDRk vf/kfu;e 1994 dh ^^vuqlwph&nks^^ vf/klwpuk la[;k 22@16@12&dk 2@1995 Vh-lh- fnukad 8&12&1995 }kjk ;Fkkla'kksf/kr ls vkPNkfnr u gks muds gh iq=@iq=h dks mDr vkj{k.k vuqeU; gksxk ,ao fo/kk;h vuqHkkx&1 dh vf/klwpuk la[;k&1576@l=g&fo&1 ¼d½ 11@2002 fnukad 31 vxLr] 2002 }kjk vf/klwpuk m0iz0 vf/kfu;e la[;k&1 lu 2002 Hkh izHkkoh gksxkA lkekU;&oxZ (U.R.) ds vH;kfFkZ;ksa ds lkFk ;fn mfYyf[kr dksbZ vkjf{kr oxZ dk vH;FkhZ ;ksX;rk ds vk/kkj ij p;fur gksrk gS rks mls vkjf{kr lhVksa esa lek;ksftr ugh fd;k tk;sxk] tSlk fd bl laca/k esa 'kklukns'k iwoZ esa fuxZr fd;k tk pqdk gSA vr% mijksDr izLrj&v esa mfYy[kr oxZ dh lhVksa dks Hkjus ls igys ;ksX;rk ds vk/kkj ij 50 izfr'kr lkekU; lhVksa dks Hkjk tk;sxkA Lis'ky dEiksusUV Iyku ds vUrZxr Lfkkfir fd;s tkus okys esfMdy dkWystksa esa miyC/k izR;sd ikB~;dze dh dqy lhVksa ij fuEuor ^oVhZdy^ vkj{k.k iznku fd;k tk;sxkA ¼'kklukns'k la0&18@26 o0iz0@2010@th&112&2010 fnukad 14-01-2011½ ¼1½ vuqlwfpr tkfr ,ao tutkfr ds vH;FkhZ 70% ¼II½ vU; fiNMs+ oXkZ ds vE;FkhZ 15 % ¼c½ uksV& 2016 esa fofHkUUk Js.kh ds vH;fFkZ;ksa ds fy, fuEuor *{kSfrt vkj{k.k* (Horizontal Reservation) iznku fd;k tk;sxk rFkk lHkh ikB~;dzeksa esa Hkjh tkus okyh izR;sd dkyst dh dqy lhVksa ij 'kkjhfjd :i ls fodykaxks] Lora=rk laxzke lsaukfu;ksa ds vkfJrksa ¼iq=@iqf+=;ksa ,oa iq=@iq=h o iq=@iqf=;ksa½ rFkk HkwriwoZ lSfud ¼;q) es viax@lsokfuo`Rr@'kghn½ ds iq=@iqf=;ksa] fu;ekuqlkj efgyk vH;fFkZ;ksa rFkk ch- xszfMax lfgr *lh* lfVZfQdsV/kkjh ,u-lh-lh- dSMVksa dks fuEuor~ *{kSfrt vkj{k.k*(Horizontal Reservation) iznku fd;k tk;sxk& 1- Lora=rk laxzke lsaukfu;ksa ds vkfJrksa ¼iq=@iqf+=;ksa ,oa iq=@iq=h ds iq=@iqf=;ksa½ ds fy, 02 izfr'kr 2- HkwriwoZ lSfud ¼;q) es viax@lsok fuo`Rr@'kghn½ ds iq=@iq=h ds fy, 02 izfr'kr 3- fodykax vH;fFkZ;ksa ds fy, 03 izfr'kr 4- efgyk vH;fFkZ;ksa ds fy, 20 izfr'kr 5- ch* xszfMax lfgr *lh* lfVZfQdsV ,u-lh-lh- dSMsV 01 izfr'kr ;g vkj{k.k *{kSfrt*(Horizontal) izd`fr dk gksxk vkSj mi;qZDr izR;ds Js.kh esa ;ksX;rkds vk/kkj ij p;fur vH;fFkZ;ksa dks vuqlwfpr tkfr&vuqlwfpr tutkfr@vU; fiNM+s oxZ@lkekU; Jsf.k;ksa esa ls ml Js.kh esa j[kk tk;sxk ftlls og lEcfU/kr gSaA mnkgj.kkFkZ ;fn Lora=rk laxzke lsukuh ds okLrfod vkfJrksa dks iznRr vkj{k.k ds varxZr p;fur dksbZ vH;FkhZ vuqlwfpr tkfr dk gS] rks mls vuqlwfpr tkfr ds fy, vkjf{kr lhVksa esa lek;ksftr fd;k tk;sxkA blh izdkj ;fn fodykax vH;fFkZ;ksa dks iznRr vkj{k.k ds vUrxZr p;fur dksbZ vH;FkhZ vU; fiNMs+ oxZ ;k lkekU; Js.kh dk gS rks mls vU; fiNM+s oxZ ;k lkekU; Js.kh ds fy, vkjf{kr lhVksa esa lek;ksftr fd;k tk;sxkA blh izdkj ;fn Lora=rk laxzke lsaukfu;ksa ds vkfJrksa ¼iq=@iqf+=;ksa ,oa iq=@iq=h ds iq=@iqf=;ksa½@ HkwriwoZ lSfudksa ds iq=] iq=h@fodykax@efgyk vH;FkhZ bu miJsf.k;ksa dh vukjf{kr ¼vksisu esfjV½ gS rks vuvkjf{kr ¼vksisu esfjV½ esa j[kk tk;sxkA fodykax vH;fFkZ;ksa dh fodykaxrk bl lhek rd u gks fd fpfdRlk f'k{kk esa ck/kd gksA Lora=rk laxzke lsukfu;ksa ds vkfJrksa ¼iq=@iqf+=;ksa ,oa iq=@iq=h ds iq=@iqf=;ksa½] HkwriwoZ lSfud ¼;q) es viax@lsokfuo`Rr@'kghn½ ds iq=@iqf=;ksa fodykax Js.kh ,oa *ch* xszfMax lfgr *lh* lfVZfQdsV /kkjh ,u-lh-lh- dSMsVksa ds tks vH;FkhZ bu miJsf.k;ksa esa vkosnu djsaxs] og blh miJs.kh dh vkjf{kr lhV ds fo:) lek;ksftr fd;s tk;saxsA vkjf{kr Js.kh;ksa dh lhVkas ds laca/k esa fuEufyf[kr 'krksZ dk ikyu fd;k tk;sxk%& ¼d½ vuqlwfpr tutkfr ds vgZ vH;FkhZ iwjh la[;k esa miyC/k u gksus ij bu vkjf{kr lhVksa dks vuqlwfpr tkfr ds vH;fFkZ;ksa ds }kjk Hkjk tk;sxkA ¼[k½ izek.k&i= ds fu/kkZfjr izi= iju gksus dh fLFkfr esa vH;FkhZ dks lkekU; Js.kh dh vH;FkhZ ekuk tk;sxk rFkk mldh Js.kh dks fdlh Hkh n'kk esa ifjofrZr ugha fd;k tk;sxkA ¼x½ lkekU; oxZ ds vH;fFkZ;ksa ds lkFk ;fn vuqlwfpr tkfr] vuqlwfpr tutkfr ,oa vU; fiNM+s oxZ dk vH;FkhZ ;ksX;rk ds vk/kkj ij p;fur gksrk gS rks mls vkjf{kr lhVksa es le;ksftr ugha fd;k tk;sxkA vH;FkhZ tks lkekU; Js.kh ds vH;fFkZ;ksa ds led{k esfjV ds vk/kkj ij izos'k ik;saxs mUgsa mi;qZDr vkjf{kr lhVksa dh x.kuk esa 'kkfey ugha fd;k tk;sxkA ¼?k½ vU; fiNM+s oxZ dh Js.kh ds varxZr izos'k ds bPNqd vH;fFkZ;ksa dks izek.k i= la[;k&2 ij 'kklu }kjk fu/kkZfjr izek.k i= izLrqr djuk vfuok;Z gSA ;fn ,sls vU; fiNM+s oxZ ds varxZr vkj{k.k ds ykHk ds bPNqd vH;FkhZ fu/kkZfjr izek.k i= izk:i&2 ds vUrxZr izLrq ugh djrs gSa rks mUgsa lkekU; Js.kh dk vH;FkhZ ekuk tk;sxkA ¼M-½ fodykax vH;fFkZ;ksa dks lqjf{kr lhVksa ij ,e-ch-ch-,l-@ch-Mh-lh- ikB~;dzeksa esa izos'k gsrq vH;fFkZ;ksa dks viuh fpfdRlk ijh{kk esfMdy fo'ofo|ky; rFkk jktdh; esfMdy dkystksa esa xfBr fo'ks"k esfMdy cksMZ ls djkuh gksxh vkSj mDr cksMZ }kjk bl Js.kh dks vkjf{kr lhV ds le{k mldh vH;FkZu ds laca/k esa fn;s x;s fu.kZ; vfUre :i ls ekU; gksxkA mDr fo'ks"k cksMZ ds xBu ds laca/k esa vko';d vkns'k egkfuns'kd] fpfdRlk f'k{kk mRrj izns'k }kjk vyx ls tkjh fd;s tk;saxsA esfMdy cksMZ fyf[kr ijh{kk dk ifj.kke ?kksf"kr gksus ds i'pkr dkmfUlfyax ds igys izR;sd jktdh; esfMdy dkyst esa cSBsxkA esfMdy cksMZ ds le{k dsoy mUgha vH;fFkZ;ksa dks mifLFkr gksuk gksxk tks fyf[kr ijh{kk dh esfjV ds vk/kkj ij fodykax Js.kh esa vgZ ?kksf"kr fd;s tk;saxsA dsoy egkfuns'kd] fpfdRlk f'k{kk m-iz- }kjk xfBr esfMdy cksMZ }kjk fn;k x;k fu/kkZfjr izk:i esa izek.k&i=&3 ij fn;k x;k izek.k i= gh ekU; gksxkA ;fn fdlh vH;FkhZ dh cksMZ dh jk; esa fodykaxrk ,e-lh-vkbZ- }kjk fu/kkZfjr ekudksa ds vuq:i ugha gS rks ,sls vH;FkhZ dkmaflfyax@izos'k gsrq vgZ ugha gksaxsA esfMdy dkmfUly vkWQ bf.M;k ds i= la- ,e-lh-vkbZ-&34 ¼1½ (GEN@2009- esM@2569 fnukad 21-04-2009 dh O;oLFkk ds vuqlkj izFke dkmfUlfyax esa 50% ls 70% yksdkseksVjh fMlsfcfyVh ds fodykax vH;fFkZ;ksa dks fodykax Js.kh gsrq vkjf{kr lhVsa vkoafVr dh tk;saxhA f}rh; dkmfUlfyax esa ;fn fodykax lhVsa 'ks"k jgrh gSa rks vksiu dVsxjh lhV esa 'kkfey djus ls iwoZ bu lhVksa dks 40% ls 50% yksdkseksVjh fMlsfcfyVh ds vH;fFkZ;ksa dks vkoafVr fd;k tk;sxkA½ fodykax vH;fFkZ;ksa ds fy, dsoy egkfuns'kd] fpfdRlk f'k{kk m-iz- }kjk xfBr esfMdy cksMZ }kjk fu/kkZfjr izk:i ¼izek.k&i=&3½ ij fn;k x;k izek.k i= gh ekU; gksxkA ¼p½ vuqlwfpr tkfr@vuqlwfpr tutkfr@vU; fiNM+k oxZ@ Lora=rk laxzke lsukuh ds okLrfod vkfJr vkSj HkwriwoZ lSfud ¼;q) esa viax@lsokfuo`Rr@'kghn½ds iq=@iqf=;ksa ,oa iq=h ds iq=@iqf+=;ksa dh Js.kh ds vkjf{kr vH;fFkZ;ksa ds fy, laxr Js.kh ds vH;FkhZ gksus ds lEcU/k esa le;≤ ij fuxZr 'kklukns'kksa ds vuqlkj fu/kkZfjr izk:i ij fn;s x;s izek.k&i= gh ekU; gksaxs ¼lkr iek.k&i=ksa ds izk:i layXudksa ds :i esa iznf'kZr gSa½A vuqlwfpr tkfr rFkk tutkfr ds tkfr izek.k&i= dk fu/kkZfjr izk:i izek.k&i=&4 gSA LorU=rk laxzke lsukuh ds vkfJrksa ¼iq=@iqf=;ksa ,ao iq=@iq=h ds iq=@iqf=;ksa½ }kjk vius nkos ds leFkZu esa fu/kkZfjr izk:i ds izek.k&i=&5 ij gh izLrqr djuk gksxk HkwriwoZ lSfud ¼;q) esa viax@lsokfuo`Rr@'kghn½ ds iq=@iqf=;ksa dks vius nkos ds leFkZu esa fu/kkZfjr izk:i ds izek.k&i=&6 ij l{ke vf/kdkjh }kjk tkjh izek.k&i= izLrqr djuk gksxk rFkk ^ch^ xzsfMax lfgr ^lh^ lfVZfQdsV/kkjh ,u0lh0lh0dSMsV dks vkj{k.k dk ykHk izkIr djus gsrq fu/kkZfjr izk:i ds izek.k&i=&7 ij gh izek.k&i= izLrqr djuk gksxkA ¼N½ dkfeZd vuqHkkx&2 ds 'kklukns'k la[;k& 18@1&2008&dk& 2@20015 fnukad 21-04-2015 ds vuqlkj mRrj izns'k yksd lsok ¼'kkjhfjd :i ls fodaykx LorU=k lxzkae lsukfu;ksa ds vkfJr vkSj HkwriwoZ lSfudksa ds fy, vkj{k.k½ vf/kfu;e]1993 ¼;Fkkla'kksf/kr½ esa izkfo/kkfur LorU=rk laxzke lsukfu;ksa ds vkfJr&iq=]iq=h]ikS= ¼iq= dk iq= ;k iq=h dk iq=½ rFkk ikS=h ¼iq= dh iq=h ;k iq=h dh iq=h½ }kjk fu/kkZfjr izk:i esa l{ke izkf/kdkjh@vf/kdkjh vFkkZr ftykf/kdkjh }kjk gh vkfJr izek.k&i= dkmflfyax ds le; izLrqr djuk gksxkA vH;fFkZ;ksa dks bl laca/k esa dkmaflfyax cksMZ ds le{k ewy fuokl izek.k&i= izLrqr djuk gksxk rFkk izos'k ds le; Hkh lacaf/kr dkyst ds iz/kkukpk;Z }kjk ewy fuokl izek.k&i= ls izekf.kr Nk;kizfr dh lR;rk dh iqf"V ds mijkUr gh izos'k dh dk;Zokgh lqfuf'pr dh tk;sxhA ¼t½ Lis'ky vihy la[;k&689@2015 lqjsUnz dqekj dkoar cuke ;wfu;u vkWQ bf.M;k o vU; esa ek0 mPp U;k;ky; }kjk ikfjr vkns'k fnukad 26-10-2015 ds ifjisz{; esa vU; jkT;ksa@la?k 'kkflr {ks=ksa ls mRrj&izns'k esa foLFkkfir gksdj vk;s Nk=ksa dks uhV ds vUrxZr vuqlwfpr tkfr@vuqlwfpr tutkfr ds vkj{k.k dk ykHk iznku ugha fd;k tk;sxkA"
Full fledged mechanism to be adhered in the matter of counselling has also been provided for in the Brochure concerned. Same provides as follows:-
" dkmaflfyax (Counseling) 'kS{kf.kd l= 2016&17 ,e0ch0ch0,l0@ch0Mh0,l0 ikB~;dzeksa esa dkmaflfyax gsrq vgZrk fuEufyf[kr gS %& ** ek= ,sls Nk=] ftUgksus NEET ijh{kk 2016 esa izfrHkkx fd;k gks rFkk fu/kkZfjr vkWuykbZu O;oLFkk ds ek/;e ls iathd`r fd;k gks] gh dkmaflfyax gsrq vgZ ekus tk;sxsA bl izdkj ls izns"k ds leLr futh ,oa jktdh; esfMdy dkystksa@laLFkkuksa esa izos'k gsrq bPNqd vH;fFkZ;ksa }kjk vkWuykbZu iathdj.k vfuok;Z gksxkA iathdj.k ds lk{; ds :i esa dsoy csclkbZM }kjk vH;FkhZ ds vH;FkZu ds dze esa izkIr fiz.V vkmV vuqeU; gksxkA** dkmaflfyax laca/kh lwpuk % ¼d½ uhV&2016 dh LVsV dksVk dh esfjV lwph izdkf'kr gksus ds mijkar dkmaflfyax laca/kh fooj.k ,oa izfdz;k izns'k ds nSfud lekpkj i=ksa rFkk www.updgme.in ij izdkf'kr dh tk,xhA ¼[k½ izFke pdz dh dkmaflfyax ekg flrEcj 2016 ds izFke lIrkg esa lEiUu dh tk,xh] ftlesa ekU;rk izkIr dkWystksa ds ,e0ch0ch0,l0 rFkk ch0Mh0,l0 ikB~;dzeksa gsrq dkmaflfyax dh tk;sxhA dkmaflfyax dk dk;Z egkfuns'kd] fpfdRlk f'k{kk ,oa izf'k{k.k] mRrj izns'k }kjk fd;k tk;sxk rFkk lEcfU/kr lwpuk egkfuns'kd fpfdRlk f'k{kk ,oa izf'k{k.k m0iz0 }kjk izns'k ds eq[; lekpkj i=ksa rFkk csclkbV (www.updgme.in) esa izdkf'kr dh tk;sxhA ¼x½ f}rh; pdz dh dkmaflfyax ekg flrEcj 2016 esa gh vk;ksftr dh tk;sxh ftldk foLr`r fooj.k egkfuns'kd] fpfdRlk f'k{kk ,oa izf'k{k.k] mRrj izns'k }kjk lekPkkj i=ksa ,oa csclkbV esa izdkf'kr djk;k tk;sxkA vH;fFkZ;ksa dks bl gsrq vyx ls dksbZ lwpuk ugha Hksth tk;sxhA f}rh; pdz dh dkmaflfyax esa izFke pdz ls vkoaVu izkIr vH;FkhZ Hkh iqujkoaVu gsrq Hkkx ys ldsaxsA f}rh; pdz esa izksfotuy vkoaVu ds i'pkr fjDr mi Js.kh dh lhVksa dks vafre vkoaVus djus ls iwoZ mudh ewy Js.kh esa lek;ksftr dj vkoaVu dj fn;k tk;sxkA blh izdkj vuqlwfpr tutkfr dh fjDr lhVksa dk vkoaVu vafre djus ls iwoZ vuqlwfpr tkfr dh lhVksa esa lfEefyr dj vfUre vkoaVu dj fn;k tk;sxkA blh izdkj ;fn vfUre vkoaVu ls iwoZ ;g ik;k tkrk gS fd vuqlwfpr tkfr@vU; fiNM+k oxZ ds lHkh vgZ vH;fFkZ;ksa dks vkeaf=r djus ds i'pkr Hkh bu Jsf.k;ksa dh lhVsa fjDr jg x;h gS] rks mUgsa Hkh lkekU; lhVksa esa tksM+dj vkoafVr dj fn;k tk;sxkA dkmaflfyax gsrq vH;fFkZ;ksa dks Lo;a uhV&2016 ds izos'k i= rFkk fuEuor~ izys[kksa] ewy ,oa ,d&,d Nk;kizfr ¼Lor% izekf.kr½ lfgr dkmaflfyax gsrq fu;e LFkku rFkk le; ij mifLFkr gksuk gksxkA foLr`r lwpuk gsrq osclkbZV www.updgme.in dk voyksdu djsaA 1- vgZ ijh{kk mRrh.kZ gksus dk ewy izek.k&i= rFkk@vFkok vadrkfydk ¼baVjehfM,V@baVjehfM,V ,oa ch-,l-lh-½ 2- vkWu&ykbu vkosnu ds le; viyksM fd, x, QksVksxzkQ ftl fuxsfVo ls cus gS mlh ls cuk gqvk nks QksVksxzkQA 3- Js.kh izek.k&i= ¼;fn lkekU; Js.kh ds u gksa½ ewy&:i (Original) esaA 4- gkbZLdwy ;k led{k ijh{kk esa mRrh.kZ gksus dk ewy izek.k&i= (Original Certificate)A 4- mRrj izns'k ds ewy fuoklh gksus dk ewy mi;qDr izek.k &i= (Prescribed Certificate in Original ) 5- uhV&1@uhV&2 dk izos'k&i= (Admit Card) 6- uhV 2016 Rank Letter ewy :i esaA 7- vkWuykbZu iathdj.k dk fiz.V vkmVA dkmaflfyax fu;r fnu ds var rd iw.kZ u gksus ij vxys fnu Hkh tkjh jg ldrh gSA vH;FkhZ dks vkus tkus] vius jgus] [kkus ihus dk O;oLFkk Loa; djuh gksxhA ¼Ä½ vH;fFkZ;ksa dks iathdj.k ds vk/kkj ij l`ftr ,oa izdkf"kr esfjV lwph ds dze esa dkmaflfyax ds fy, cqyk;k tk;sxkA ikB~;dzeksa@dkystksa dk vkoaVu vH;fFkZ;ksa }kjk fn;s x, fodYi ,oa ml le; miyC/k fjDr lhVksa ds vk/kkj ij fd;k tk;sxkA vkjf{kr Jsf.k;ksa dh dkmfUlfyax vyx ls ugha gksxhA vkjf{kr Js.kh ds vH;FkhZ vius LVsV jSad ds vuqlkj mifLFkr gksaxs rFkk mUgsa lkekU; lhV vFkok vkjf{kr lhV esa ls miyC/k fodYi fodYi pquuk gksxkA gkWfjtkWUVy Js.kh ¼FF & Lora=rk laxzke lsukfu;ksa ds vkfJr] ES & HkwriwoZ lSfud ¼;q) esa viax@lsokfuo`RRk@'kghn½ ds iq=@iq=h] PH & fodykax] ¼WC½ & efgyk NCC ,u-lh-lh- izek.k i= /kkjd½] ds vH;fFkZ;ksa dks Hkh LVsV jSad ds vuqlkj gh dkmfUlfyax esa Hkkx ysuk gksxkA vyx ls miJsf.k;ksa dh dkmaflfyax ugha gksxhA tks vH;FkhZ bu miJsf.k;ksa esa vkosnu djsaxs dsoy mUgsa gh miJsf.k;ksa esa lek;kstu ds fy;s vgZ ekuk tk;sxkA ¼³½ dkmfUlfyax ds le; lHkh vH;fFkZ;ksa dks /kjksgj /kujkf'k :0 5]000@& vkWuykbZu izfdz;k ds ek/;e ls cSad esa tek djuk gksxkA blds lEcU/k esa foLr`r fooj.k dkmaflfyax dks le; lkfj.kh ds lkFk nSfud lekpkj i=ksa rFkk osclkbZV www.updgme.in ij izdkf'kr fd;k tk,xkA ¼p½ ;fn dksbZ vH;FkhZ Loa; dkmaflfyax ds fu/kkZfjr fnu o le; esa mifLFkr ugha gksrk gS rks oks dsoy mlh dkmaflfyax esa vkoaVu ls oafpr gksxk vkSj vxyh dkmaflfyax esa Hkkx ysus ds fy, vgZ jgsxkA mlh fnu ijUrq foyEc ls vkus ij rRle; miyC/k lhVksa esa ls gh vkoaVu izkIr djus dk vf/kdkj gksxkA vkoaVu gsrq vH;FkhZ dk Loa; mifLFkr gksuk vfuok;Z gSA ¼N½ ;fn dksbZ vH;FkhZ vkoaVu ds i'pkr ikB~;dze esa izos'k ugha ysrk gS vFkok izos'k ysus ds i'pkr R;kxi= ns nsrk gS ¼uhV LVsV dksVk dh lhVksa ij iqujkoaVu dh fLFkfr dks NksMdj½] rks mls mlds }kjk tek dh x;h /kjksgj /kujkf'k :0 5]000@& okil ugha dh tk;sxhA"
The brochure in question also contains the Time Schedule for completion of the admission process for 1st MBBS Course, which reads as under:-
"TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE (Academic Session 2016-17) Schedule for Admission Seats filled up All India Quota Seats filled up by the State Govt./Institutions Conduct of National Eligibility of Entrance Test (NEET 2016) NEET 1 Conduct on 1st May 2016 NEET 2 on 24th July 2016 NEET 1 Conduct on 1st May 2016 NEET 2 on 24th July 2016 Declaration of Result of Qualifying Examination/Entrance Examination 17th August, 2016 17th August, 2016 1st Round of Counselling/Admission 22nd August to 27th August, 2016 3rd September to 5th September, 2016 Last date for joining the allotted College and Course 3rd September, 2016 By 8th September, 2016 2nd Round of Counselling/Admission 9th to 14th September, 2016 21st September to 23rd September, 2016 Last date for joining for the candidates allotted seats in 2nd Round of Counselling By 20th September, 2016 By 26th September, 2016 Commencement of Academic Session 3rd September, 2016 3rd September, 2016 Last date up to which students can be admitted against vacancies arising due to any reason Not applicable 30th September, 2016 SCHEDULE FOR ON LINE COUNSELLING (ALLOTMENT PROCESS) FOR ALL INDIA QUOTA UG (MBBS/BDS) SEATS-2016 All India Quota (Online Counselling) Sl. No. Event Duration Days 1 Main Counselling Registration Choice Filling and Indicative Seat 22nd August to 25th August, 2016 (Registration will be open up to 5.00 P.M. of 25th August 2016 only) 4 days 2 Exercising of Choices and Locking 25th August, 2016 (up to 05.00 PM of 25th August, 2016 1 Day 3 Process of Seat Allotment-Round 1 26th August, 2016 1 Day 4 Round 1 Result Publish 27th August, 2016 1 Day 5 Reporting at the Allotted Medical/Dental College against 1st Round 26th August to 3rd September, 2016 (up to 05.00 PM of 3rd September, 2016 7 Days 6 Exercising of Choices and Locking (Round 2) 9th September, 2016 to 10th September, 2016
2 Days 7 Process of Seat Allotment-Round 2 11th September, 2016 1 Day 8 Round 2 Result Publish 12th September, 2016 1 Day 9 Reporting at the Allotted Medical/Dental College against Round 2 13th to 20th September, 2016 to 10th September, 2016 (up to 05.00 PM of 20th September, 2016 8 Days 10 Transfer of vacant seats to State Quota 20th September, 2016 (After 05.00 PM) Commencement of MBBS/BDS first year session from 13th September, 2016."
On the basis of State rank (Combined General Rank) candidates are to be called for counselling and a clear cut provision has been provided therein that there would be no separate counselling of candidate belonging to special category and the candidates are to appear and opt either for general seat or reserved seat on the basis of their merit and no separate counselling shall take place for candidates from special sub-category.
For the purposes of counselling, seat chart has been prepared for the Government Colleges containing therein the name of respective Government Colleges, their respective social category and the seats earmarked for Freedom Fighter category, PH category and NC category and others. The seat chart is as follows:-
Seat Chart for the NEET-2016 first counselling on date 03.09.2016 Government Colleges MBBS BDS GENERAL OBC S.N COLLEGE OP FF PH EA NC GL TOT OP FF PH EA NC GL TOT Collg. Tot 1 KGMU Lucknow 76 2 3 2 1 21 105 41 1 2 1 1 11 57 2 GSVM Kanpur 57 2 2 2 1 16 80 30 1 1 1 1 9 43 159 3 SNMC Agra 45 1 2 1 1 13 63 24 1 1 1 0 7 34 4 MLN ALLAHABAD 46 1 2 1 0 12 62 23 1 1 1 0 7 33 124 5 LLRM MEERUT 45 1 2 1 1 12 62 25 1 1 0 0 7 34 6 MLB JHANSI 30 1 1 1 0 8 41 16 0 1 1 0 4 22 82 7 BRD GKP 30 1 1 1 0 8 41 18 0 0 0 0 4 22 8 UPRIMS SAFAI 46 1 2 1 1 13 64 24 1 1 0 1 7 34 128 9 AZAMGARH 29 1 1 1 1 9 42 17 0 1 1 0 4 23 10 BANDA 30 1 2 1 0 8 42 17 0 1 0 0 5 23 85 11 AMBEDAK-AR NAGAR 5 0 1 0 0 1 7 7 1 0 0 0 3 11 12 KANNAUJ 4 1 0 0 0 2 7 9 0 0 0 0 2 11 85 13 JALAUN 5 0 0 0 0 2 7 8 0 0 1 0 2 11 14 SAHARANP-UR 6 0 0 0 0 1 7 8 0 1 0 0 2 11 85 Grand Total 454 13 19 12 6 126 630 267 7 11 7 3 74 369 1544 Final Course Total 1544 Government Colleges MBBS BDS SC ST S.N COLLEGE OP FF PH EA NC GL TOT OP FF PH EA NC GL TOT Collg Tot 1 KGMU Lucknow 31 1 1 1 1 9 44 3 1 0 0 0 1 4 2 GSVM Kanpur 23 1 1 0 1 7 33 2 1 0 0 0 1 3 159 3 SNMC Agra 18 1 1 1 0 5 26 2 1 0 0 0 0 2 4 MLN ALLAHABAD 21 0 1 0 0 5 27 2 0 0 0 0 0 2 124 5 LLRM MEERUT 21 0 0 0 0 5 26 1 0 0 0 0 1 2 6 MLB JHANSI 11 1 1 1 0 3 17 1 0 0 0 0 1 2 82 7 BRD GKP 11 0 1 1 0 4 17 2 0 0 0 0 0 2 8 UPRIMS SAFAI 19 1 1 1 0 5 27 2 0 0 0 0 1 3 128 9 AZAMGARH 14 0 0 0 0 4 18 2 0 0 0 0 0 2 10 BANDA 14 0 0 0 0 4 18 2 0 0 0 0 0 2 85 11 AMBEDKAR NAGAR 45 1 2 1 1 12 62 4 0 0 0 0 1 5 12 KANNAUJ 45 1 2 2 0 12 62 4 0 0 0 0 1 5 85 13 JALAUN 45 2 1 1 1 12 62 4 0 0 0 0 1 5 14 SAHARANP-UR 45 1 2 1 0 13 62 4 0 0 0 0 1 5 85 Grand Total 363 10 14 10 4 100 501 35 0 0 0 0 9 44 1544 Final Course Total 1544 A perusal of the chart in question noted above would go to show that total seats available were 1544 in the first counselling. In General/Open category 630 seats, in OBC category 369 seats, in SC category 501 seats and in ST category 44 seats. Further sub-categorisation was done wherein as far as NCC category/sub-category seats are concerned, at KGMU Lucknow one seat has been earmarked for general category, one seat has been earmarked for OBC category and one seat has been earmarked for SC category; in reference of GSVM Kanpur, one seat has been earmarked for general category, one seat has been earmarked for OBC category and one seat has been earmarked for SC category; in reference of SNMC Agra, one seat has been earmarked for general category; in reference of UPRIMS Saifai, one seat has been earmarked for general category and one seat has been earmarked for OBC category. In all 06 seats were available for general/open category, 03 seats for other backward class and 04 for scheduled caste category candidate.
From the record in question, this much is clearly reflected that as counselling was to be done strictly on the basis of the State rank in the said direction, as far as opposite party no.5 is concerned, she has been called at earlier point of time as compared to the petitioner whose merit status admittedly is lower as compared to the opposite party no.5. This fact is also accepted that on the basis of over all State rank of respondent no.5 i.e. 2895 and overall State rank of petitioner i.e. 3877, both the candidates were not in position to be allotted any seat in the counselling in their respective categories and as in NCC category/sub-category candidates placed at serial no.1, 3, 4, 5, 6 and 10 could not get the seats, for this reason they have been accorded admission.
Mention has been made that NCC category/sub-category is an independent/separate category, both petitioner and respondent no.5 were not in a position to have/opt for any seat in the counselling in their respective categories as females on basis of merit alone but both appeared and have been allotted seats in counselling under NCC sub-category in accordance with their overall State rank.
In reference to the chart in question, termed as Seat Chart for NEET 2016 first counselling, Director General, Medical Education and Training, U.P. at Lucknow has come up with the case, that the same gives details of "overall reservation". Petitioner on the other hand is asserting that once each seat has been caged then it has to be accepted as compartmentalised, with no liberty to cross over.
The issue raised before us would get light from the judgement of the Apex Court in the case of Anil Kumar Gupta and others vs. State of U.P. and others 1995 (5) SCC 173 wherein the issue of horizontal reservation being overall or compartmentalised has been dealt with extensively. Relevant extract of the said judgement reads as follows:-
"16. Now coming to the revised notification of December 17, 1994, it says that "horizontal reservation be granted in all medical colleges on total seats of all the courses....". These words are being interpreted in two different ways by the parties; one says it is over-all reservation while other says it is compartmentalised. Paragraph 2 says that the candidates selected under the aforesaid special categories "would be kept under the categories of Scheduled Castes/Scheduled Tribes/Other Backward Classes/General to which they belong. For example, if a candidate dependent on a freedom fighter selected on the basis of reservation belongs to Scheduled Castes, he will be adjusted against the seat reserved for Scheduled Castes". This is sought to be read by the petitioners as affirming that it is a case of compartmentalised reservation. May be or may not be. It appears that while issuing the said notification, the Government was not conscious of the distinction between overall horizontal reservation and compartmentalised horizontal reservation. At any rate, it may not have had in its contemplation the situation like the one which has arisen now. This is probably the reason that this aspect has not been stated in clear terms.
17. It would have been better - and the respondents may note this for their future guidance - that while providing horizontal reservations, they should specify whether the horizontal reservation is a compartmental one or an overall one. As a matter of fact, it may not be totally correct to presume that the Uttar Pradesh Government was not aware of this distinction between "overall horizontal reservation", since it appears from the judgment in Swati Gupta that in the first notification issued by the Government of Uttar Pradesh on May 17, 1994, the thirty percent reservation for ladies was split up into each of the other reservations. For example, it was stated against backward classes that the percentage of reservation in their favour was twenty seven percent but at the same time it was stated that thirty percent of those seats were reserved for ladies. Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a "compartmentalised horizontal reservation". We are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal reservations are compartmentalised in the sense explained above. In other words, the notification inviting applications should itself state not only the percentage of horizontal reservation(s) but should also specify the number of seats reserved for them in each of the social reservation categories, viz., S.T., S.C., O.B.C. and O.C. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has happened in this case. As pointed out hereinabove, 110 seats out of 112 seats meant for special reservations have been taken away from the O.C. category alone - and none from the O.B.C. or for that matter, from S.C. or S.T. It can well happen the other way also in a given year.
18. Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen percent special reservation seats to be filled up first and then take up the O.C. (merit) quota (followed by filling of O.B.C., S.C. and S.T. quotas). The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. Quota.
19. In this connection, we must reiterate what this Court has said in Indra Sawhney. While holding that what may be called "horizontal reservation" can be provided under clause (1) of Article 16, the majority judgment administered the following caution in para 744:
"(B)ut at the same time, one thing is clear. It is in very exceptional situation - and not for all and sundry reasons - that any further reservations of whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress the specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simply. If reservations are made both under clause (4) as well as under (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do". Though the said observations were made with reference to clauses (1) and (4) of Article 16, the same apply with equal force to clauses (1) and (4) of Article 15 as well. In this case, the reservation of fifteen percent of seats for special categories was on very high side. As pointed out above, two categories out of them representing six percent out of fifteen percent are really reservations under Article 15(4), wrongly treated as reservations under Article 15(1). Even otherwise, the special reservation would be nine percent. The respondents would be well advised to keep in mind the admonition administered by this Court and ensure that the special reservations (horizontal reservations) are kept at the minimum.
20. Having pointed out the errors in the rule of reservation and its implementation, the question arises what should be done now? Should we interfere with the admissions already finalised? We think it inadvisable to do so. It may be remembered that the admissions now finalised (in June- July, 1995) are really the admissions which ought to have been finalised one year back. The delay has occured on account of the first faulty notification (issued on May 17, 1994). When a writ petition was filed in this court - probably some writ petitions in the High Court also - the Government realised its mistake and issued the revised notification on December 17, 1994. It dropped the reservation in favour of women in stages. The University had then to issue a corrigendum asking the special category candidates to indicate their social status. This was a delayed exercise which ought to have been undertaken at the beginning itself. Even the manner in which the seats have been filled up, as indicated above, is faulty. What we have laid down herein is more for the purpose of future guidance for the respondents. At the same time, we have to rectify the injustice done to the open competition candidates in the admissions in question, to the extend feasible. Accordingly, we direct that in the matter of admissions made pursuant to C.P.M.T.1994, while the admissions already finalised shall not be disturbed, the Uttar Pradesh Government shall create thirty four additional seats in the M.B.B.S. course and admit thirty four students from the O.C. category against those seats. If any seats are vacant as on today, they shall also be filled from the O.C. category alone. (It is made clear that O.C. category means the merit list and no distinction shall be made among the candidates in the O.C. list on the basis of their social status because it is well settled that even a S.T./S.C./O.B.C. candidate is entitled to obtain a seat in the O.C. category on the basis of his merit.) The counsel for the petitioners complain that fifty four students belonging to O.C. category have been deprived on account of respondents' faulty actions and that it should be directed to be made up. We cannot agree. The factual basis of this submission is debatable in view of the ambiguity mentioned hereinbefore. We have directed creation of thirty four seats (making a total of 780 seats this year) having regard to all the facts and circumstances of the case. This creation of additional seats is restricted to current admissions only and shall not be a permanent feature. The Uttar Pradesh Government/concerned authorities shall allocate the said thirty four additional seats appropriately among the government medical colleges and make admissions thereto as early as possible."
This Court in the case of State of U.P. and others vs. Ashish Kumar Pandey and others 2016(7) ADJ 629 (DB) Special Appeal No.338 of 2016 decided on 29.01.2016 has considered the issue of horizontal reservation in following terms:-
"While applying the principle of Horizontal Reservation, category has a role to play as at the point of time when Horizontal Reservation is to be pressed, then based on merit candidates in question are to be adjusted in their respective category and the male candidates, who are at the bottom of the list as per the merit, will have to make place for women candidate. A candidate, who has proceeded to make an application for the purposes of Horizontal Reservation under the OBC/SC/ST category, cannot be permitted to change his/her category, whereas in Vertical Reservation once your are selected, on merit, such a change is permissible by operation of law and in view of this, once such is the factual situation that is so emerging that all the candidates once they have specified their category in reference of Special Reservation, then they have to be adjusted in their respective categories and the reserve category candidate cannot ask for placement against open category by claiming that they have higher merit, inasmuch as, only in the matter of Vertical Reservation, merit has a role to play wherein the list is finalized but at the point of time when for providing Horizontal Reservation adjustment is to be made, then various adjustments is required to be done as per the formula that has been approved and ratified by the Apex Court that in the matter of horizontal reservation, adjustment would be made by making appropriate placement in appropriate categories. Apex Court was conscious of this fact, that such a provision may be subjected to misuse and accordingly, position was sought to be clarified by giving examples and then providing that if horizontal reservation is not satisfied, the requisite number of special reservation candidate has to be taken and accommodated/adjusted against their respective social reservation categories. Sub-section (3) of Section 3 of U.P. Act No.4 of 1993 provides for horizontal reservation to be applied accordingly, Application of horizontal reservation in this prescribed manner maintains the merit of special reservation quota candidate alongwith their representation in service, in view of this, the Learned Single Judge is absolutely right at the point of time when he has proceeded to criticise the State Government for taking such a stand and for adhering to a procedure that was not at all prescribed in law and thus crossing the limit of reservation of 50%, in view of this, the order passed by Learned Single Judge does not deserve interference on this aspect of the matter. The category wise social breakup of 261 women candidates is as under:
1. Open Category : 69+9 (selected on merit) =78;
2. OBC category : 163+10 (selected on merit)= 173
3. SC= 10
4. ST =Nil In the open category, 78 women candidates were to be accommodated, 9 were already in the select list, therefore, 69 women candidates were required to be adjusted in the open category. Similarly, 173 women candidates belonging to the OBC category were available, of which 10 women candidates were selected on merit, therefore, 169 remaining women candidates were to be adjusted in OBC category by dislodging that many number of male candidates from bottom of the select list of OBC category. Similarly, 10 women belonging to SC category were to be adjusted under the SC category.
Such procedure ought to have been adhered to but for the reasons best known to State Appellant, they have left the known route specified by the orders of Apex Court in the judgement noted above and as understood in Government Order dated 17.12.1994, 25.02.1999 and 09.02.2007 and has chosen to adhere to such route that is no at all subscribed in the matter of application of horizontal reservation. The judgement in the case of Smt. Medha Shetty vs. State of Rajasthan, Civil Special Appeal (W) No.170 of 2013 is not at all being approved of by us keeping in view the binding precedents of Apex Court qua the applicability of horizontal reservation and statutory provision and the Government Orders issued from time to time as already mentioned by the State. Directives issued by learned Single Judge are strictly in consonance with the parameters settled by Apex Court while dealing with adjustments to be made in the matter of horizontal reservation and the spirit of statutory provision and Government Order issued from time to time."
We have already noted the judgement of the Apex Court in the case of Anil Kumar Gupta (supra) wherein the concept of horizontal reservation, as to whether it is a case of overall reservation or it is a case of compartmentalised horizontal reservation, has been discussed and elaborated in detail. The way and manner in which horizontal reservation is to be implemented and given effect to has also been dealt with in detail so that it does not proceed to cross 50% limit that has been provided for the reserved candidates in question.
Horizontal and Vertical Reservations are altogether different concepts of reservation as Vertical reservation is a social reservation and Horizontal reservation is a special reservation and the manner in which the said two way reservation is to be implemented and given effect to is also altogether different. Vertical reservation gives due importance to merit, inasmuch as, 50% of the overall seats are meant to be filled up by way of merit amongst all candidates and 50% of the seats are to be filled up by way of merit from amongst candidates belonging to OBC/SC/ST category and in case any candidate from OBC/SC/ST category, proceeds to make place for himself or herself on merit, then their selection would not be treated under OBC/SC/ST category as in the State of U.P. there is a statutory provision holding the field in the matter of according admission namely U.P. Admission to Educational Institutions (Reservation for Scheduled Castes, Schedule Tribes and Other Backward Classes) Act, 2006 wherein sub-section (5) of Section 4 provides that if a person belonging to any of the categories mentioned in sub-section (1) of Section 4 gets selected on the basis of merit as general candidate, and if he wants to remain as general candidate, then he shall not be adjusted against the vacancies reserved for such category under sub-section (1). Principles of Vertical reservation cannot be pressed into service while applying the Horizontal Reservation, inasmuch as the same cuts across vertical reservation and the dominant consideration is to create such a balance that 50% reservation quota is not breached and further rights of meritorious candidates are not otherwise defeated.
While applying the principle of Horizontal Reservation, category has a role to play as at the point of time when Horizontal Reservation is to be pressed, then based on merit, candidates in question are to be adjusted in their respective social category. A candidate, who has proceeded to make an application for the purposes of Horizontal Reservation under the OBC/SC/ST category, cannot be permitted to change his/her category, whereas in Vertical Reservation once you are selected, on merit, such a change is permissible by operation of law subject to his/her desire to remain as a general candidate. Apex Court in the case of Ritesh R. Shah vs. Dr. Y.L. Yamul 1996 (3) SCC 253 also took the view that candidate belonging to reserved category, who could be admitted on the basis of open merit, should be treated as open category candidate for the purposes of computing reservation but they should be given their first option for admission to Graduate/Post Graduate courses in colleges where seats are kept for reserved category and thereafter less meritorious candidates be considered for admission in whichever college reserve seat is available.
Sub-section (5) of Section 4 of 2006 Act is in line with the aforesaid judgement of Apex Court, as meritorious candidate has been given an option to remain as a general candidate or to exercise his option for the reserved seats. His/Her merit as a general candidate would give a larger choice i.e. to opt for unreserved seat and can also go in for reserved category seats. But this option is available to meritorious candidates of Reserved category, who are otherwise selected in the Open Category on basis of their merit alone.
In view of this, once a candidate has specified his/her category in reference to Special Reservation, then he/she has to be adjusted in their respective categories and the reserved category candidate in horizontal reservation cannot ask for placement against open category by claiming that they have higher merit, inasmuch as, at the point of time of providing Horizontal Reservation adjustment is to be made, then various adjustments is required to be done as per the formula that has been approved and ratified by the Apex Court.
In the matter of horizontal reservation, adjustment would be made by making appropriate placement in appropriate categories. The Apex Court was conscious of this fact, that such a provision may be subjected to misuse and accordingly, position was sought to be clarified by giving examples and then providing that if horizontal reservation is not satisfied, then alone requisite number of special reservation candidate have to be taken and accommodated/adjusted against their respective social reservation categories.
Here before us during the course of arguments, this fact has been conceded that while applying the principle of horizontal reservation, the criteria prescribed for vertical reservation has been adhered to inasmuch as opposite party no.5 was higher in merit and in view of this, she has been called based on her State rank at earlier point of time, then at the said point of time, as one seat at GSVM Medical College Kanpur reserved for NCC OBC stood filled up, the second NCC Open Category seat which was lying vacant has been offered to her.
In the matter of horizontal reservation once the reservation in question is a compartmentalised one, then every candidate has to be placed in the fixed place as per the social class from which he/she hails. When overall Horizontal Reservation is to be pressed, then based on merit, candidates in question are to be adjusted in their respective category and the candidates, who are at the bottom of the list as per the merit, will have to make place for horizontal category candidates irrespective of the social class to which they belong. A candidate, who has proceeded to make an application for the purposes of Horizontal Reservation under the OBC/SC/ST category, cannot be permitted to change his/her category, whereas in Vertical Reservation once you are selected, on merit, such a change is permissible, by operation of law, and in view of this, once such is the factual situation that is so emerging that all the candidates once they have specified their category in reference to Special Reservation, then they have to be adjusted in their respective categories and the reserve category candidate cannot ask for placement against general seat by claiming that they have higher merit, inasmuch as, only in the matter of Vertical Reservation, merit has a role to play wherein though the list is finalized but at the point of time when for providing Horizontal Reservation adjustment is to be made, then various adjustments are required to be done as per the formula that has been approved and ratified by the Apex Court.
In matters wherein a compartmentalised horizontal reservation is there, then the process of verification and adjustment/accommodation, as stated above, should be applied separately to each of the vertical categories of reservations and here as caging has been done at the very outset clearly then each and every seat in a compartment was having a direct co-relation with its social class, then the said compartmentalised horizontal reservation could not have been disturbed by adjusting a candidate of one social category vis-a-vis seats that were meant for the other social category.
In the present case, the fact of the matter is that State of U.P. in the matter of application of horizontal reservation has totally misread the very spirit of the application of horizontal reservation wherein based on social class, adjustments are required to be made and it is not at all an admission based on merit. Caging done by counselling authorities clearly reflected that it was a case of compartmentalised reservation. The facts of the case clearly reflect that one single seat had been reserved for OBC NCC category candidate at Kanpur, then the second OBC category candidate could not have been offered admission and contrarily, the other seats that were available in OBC category could have been offered and in case no other OBC category seat was available, then opposite party no.5 could not have been adjusted in the open category as her adjustment would have the effect of exceeding 50% reservation limit. As of now this fact has been accepted that under NCC sub-category 6 persons from OBC category; 3 General category and 4 S.C. category candidates have been accorded admission.
Before us the factual situation on which there is no dispute, as it has been agreed and conceded, that the principle as are applicable for vertical reservation has been pressed into service while applying the horizontal reservation and this much fact has also been conceded before us that the 50% reservation percentage has been infringed on account of such activity having been undertaken.
The State of U.P. in the case of Anil Kumar Gupta (supra) proceeded to commit the mistake and it appears that till today the parties enjoined upon to conduct the counselling do not appear to have understood as to what is the distinction in between overall horizontal reservation and compartmentalised horizontal reservation and that in the matter of horizontal reservation the principle applicable to vertical reservation can never ever be pressed. In view of this, we proceed to deprecate the State of U.P. for playing with the career of young students and we hope and trust that they would understand the principle of application of Vertical Reservations and Horizontal Reservations.
Next issue is that once the academic year is on and both the girl students have been admitted and admittedly the merit status of opposite party no.5 has been higher in such a situation as Respondent no.5 cannot be faulted and, as per sub-regulation (6A) of Regulation 7 of "Regulation on Graduate Medical Education 1997", there shall be no admission of students in respect of any academic session beyond 30th September, under any circumstances, and said time schedule has to be strictly adhered to as per the judgement of Apex Court in the case of Mridul Dhar vs. Union of India 2005 (2) SCC 65 as well as Priya Gupta vs. State of Chattisgarh 2012 (7) SCC 433 as such her admission is not at all being disturbed but as State has admittedly gone wrong and therefore, we impose a cost of Rs.1 lac liable to be paid by State for not applying the principles of horizontal reservation in the true spirit and thus playing with the career of students who are not before this Court and defeating the right of petitioner to exercise her option for Kanpur.
As far as petitioner is concerned, at this stage, but for the cost mentioned hereinabove no relief can be accorded to her, but certainly as she could have opted for open category seat at Kanpur, we in the facts of the case, give liberty to the Director General Medical Education and Training, U.P. at Lucknow that in case any other seat is available in any other medical college in second year, then after taking due permission from Medical Council of India, and in case petitioner so desires her request for transfer can be considered.
With this, Writ Petition in question stands disposed of.
Order Date :-24.03.2017 A. Pandey